Clark v ING Life Limited [2007] FCA 1960

FEDERAL COURT OF AUSTRALIA

Clark v ING Life Limited [2007] FCA 1960 PRACTICE AND PROCEDURE – application for leave to discontinue proceedings – with leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules 2001 (Cth) and s 43(2) of the Federal Court of Australia Act 1976 (Cth) – where leave sought is to discontinue with no order as to costs – where there has been no hearing on the merits – where respondent asserts discontinuing applicant failed to join a relevant party to the proceedings – whether discontinuing applicant acted 'unreasonably' in all the circumstances PRACTICE AND PROCEDURE – costs – factors governing the exercise of the Court's discretion to award costs – where application has been brought under O 22 r 2(1)(d) of the Federal Court Rules – where Court finds there is no delinquency or misconduct on the part of the discontinuing applicant – where there has been no determination of the proceedings on the merits Federal Court of Australia Act 1976 (Cth) s 43(2) Federal Court Rules 2001 (Cth) O 22 r 2(1)(d) JH Lever & Co Pty Ltd v Maniotis (2005) 215 ALR 773 cited Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 distinguished O'Neill v Mann [2000] FCA 1680 applied Oshlack v Richmond River Council (1998) 193 CLR 72 cited Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 662 referred to Smith v Airservices Australia (2005) 146 FCR 37 applied The Owners of The Ship 'Shin Kobi Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 cited JULIANNE MICHELLE CLARK v ING LIFE LIMITED (ABN 33 009 657 176) AND ADEPT SUPER AND LIFE PTY LTD (ABN 96 105 840 882) NSD 1454 OF 2007

RARES J

22 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1454 OF 2007

BETWEEN: JULIANNE MICHELLE CLARK

Applicant